PUBLISH

FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS

March 2, 2016

FOR THE TENTH CIRCUIT

_________________________________

Elisabeth A. Shumaker
Clerk of Court

DIANA SUE SCHAFFER,

Plaintiff - Appellant,
v.

No. 14-4112

SALT LAKE CITY CORPORATION; B.

GAIL CAMERON, in her individual
capacity; ASHLEY HOLLINGSHEAD, in
her individual capacity; TIMOTHY
STUMM, in his individual capacity,
Defendants - Appellees.
_________________________________
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:11-CV-00705-BCW)
_________________________________
Gregory W. Stevens, Salt Lake City, Utah, for Plaintiff-Appellant.
J. Elizabeth Haws, Salt Lake City Attorneys Office, Salt Lake City, Utah, for
Defendants-Appellees Salt Lake City Corporation and Timothy Stumm. Catherine L.
Brabson, Salt Lake City Attorneys Office, Salt Lake City, Utah, (with her on the brief)
for Defendant-Appellee Ashley Hollingshead. Heather S. White, Snow, Christensen &
Martineau, Salt Lake City, Utah, (with her on the brief) for B. Defendant-Appellee B.
Gail Cameron.
_________________________________
Before MATHESON, EBEL, and McHUGH, Circuit Judges.
_________________________________
EBEL, Circuit Judge.
_________________________________

Plaintiff-Appellant Diana Schaffer appeals the district courts order granting

summary judgment on her 42 U.S.C. 1983 malicious prosecution claims in favor of
Defendants-Appellants Ashley Hollingshead, B. Gail Cameron, and Salt Lake City
Corp. (the City). Schaffer maintains that Hollingshead and Cameron, two City
parking enforcement officers, falsely reported to the police that Schaffer hit them
with her truck after they issued her a parking ticket. We agree with the district court
that the parking enforcement officers did not act under color of state law in reporting
the parking incident to the police. Accordingly, we AFFIRM.
I.

BACKGROUND

Unless otherwise indicated, the following facts are undisputed. Cameron and
Hollingshead were parking enforcement officers employed by the City. As parking
enforcement officers, their duties included issuing citations for local parking
ordinances and impounding vehicles. They did not, however, have the authority to
detain or arrest citizens.
On November 7, 2008, Schaffer parallel parked a red Dodge pickup truck in a
no-parking zone. Hollingshead and Cameron were on duty together at the time, and
duly issued her a parking ticket. When Schaffer returned to her truck, she found the
parking enforcement officers engaged in an altercation with another citizen, Lisa
Garmendia, whose car was also parked in the no-parking zone. Garmendia requested
that a police officer respond to her complaints. Schaffer intervened, and requested
Camerons badge number. After briefly contesting her ticket, Schaffer got in her
truck to leave.
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At that time, the parking enforcement officers car was double-parked

alongside the vehicle parked directly in front of Schaffers truck. Hollingshead was
standing in the street near the front drivers side door of the City car; Cameron was
standing in the street near the rear drivers side door. Cameron was talking on the
phone with police dispatch, relaying Garmendias request for a police officer to
respond to the scene.
Although the exact details of what transpired next are disputed, it is
undisputed that Schaffer backed up her truck, pulled away from the curb, and then
began to drive forward past the parking enforcement officers and their car.
Camerons on-going phone call to dispatch recorded the incident. The recording
captured the parking enforcement officers yelling and pounding on the side of the
truck as Schaffer pulled by. Cameron then swore, and said to the dispatcher, She
almost hit me with her car . . . . She tried to run me over with her truck just now.
Both of us.
Upon hearing the pounding, Ms. Schaffer stopped briefly. On the recording,
Cameron continued, You almost ran us over. . . . You almost hit both of us with
your car. As Schaffer drove away, Cameron narrated, Yeah, she actually hit the
City car and shes driving off right now. Hollingshead then got on the line. When
the dispatcher asked her, So did she hit your vehicle then? Ms. Hollingshead
responded, She actually hit us and the vehicle. She broke our side mirror.
Schaffer, however, denies that her truck struck the parking enforcement officers or
their car.
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Police officer Timothy Stumm was dispatched in response to the parking

enforcement officers report, but arrived after Schaffer and Garmendia had left.
Stumm and the parking enforcement officers left the scene in their respective cars
and reconvened at a nearby police station, where Cameron and Hollingshead each
provided a written witness statement. The statements asserted that Schaffers truck
had struck both parking enforcement officers as well as the City cars outside mirror
as Schaffer drove by. Both statements also claimed that Schaffer had intentionally
tried to hit the parking enforcement officers, causing them to fear for their safety. In
addition, a crime lab technician at the station took pictures of the City car. The
pictures showed the cars drivers side mirror bent forward out of position.
Stumm traced the trucks license plate number and visited Schaffers house,
where he found the truck parked in the driveway. He observed handprints and marks
on the passenger side of the truck that were consistent with the parking enforcement
officers statements. When Schaffer answered the door, Stumm detained and booked
her for aggravated assault.
Schaffer was ultimately charged with aggravated assault and criminal
mischief. The charges proceeded to a probable cause hearing and then trial, during
which proceedings the parking enforcement officers testified that Schaffers truck
had struck both them and their car. Schaffer was acquitted on all counts.
Schaffer then filed this suit under 42 U.S.C. 1983, bringing claims against
the City and the parking enforcement officers for malicious prosecution and against
Stumm for malicious prosecution and false arrest. In this suit, Schaffer denies that
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her truck struck the parking officers or their car, and contends that the parking
officers allegedly false testimony to the contrary led to her arrest and prosecution
without probable cause. The district court granted summary judgment in favor of the
defendants. Schaffer appeals that ruling only with respect to the City and the
parking enforcement officers.1
II.

DISCUSSION

We review a district courts grant of a summary judgment de novo, applying

the same legal standard as the district court. Twigg v. Hawker Beechcraft Corp., 659
F.3d 987, 997 (10th Cir. 2011). Summary judgment is appropriate if the movant
shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In applying this
standard, we view the evidence and the reasonable inferences to be drawn from the
evidence in the light most favorable to the nonmoving party. Twigg, 659 F.3d at
997.
The two elements of a Section 1983 claim are (1) deprivation of a federally
protected right by (2) an actor acting under color of state law. D.T. ex. rel. M.T. v.
Indep. Sch. Dist. No. 16, 894 F.2d 1176, 1186 (10th Cir. 1990). Schaffer contends
that the parking enforcement officers violated her Fourth Amendment and Fourteenth
1

Although Schaffers notice of appeal referred to the entire judgment, she now
informs the court that she has decided not to pursue her appeal against Officer
Stumm. (Aplt. Br. at 2 n.2.) Accordingly, we find she has waived any arguments
regarding her claims against Stumm. See Phillips v. Calhoun, 956 F.2d 949, 954 (10th
Cir. 1992) (stating the general rule that even issues designated for review are lost if they
are not actually argued in the partys brief).
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Amendment rights by providing false statements and testimony that resulted in her
arrest and prosecution. We need not reach that issue, however, because we conclude
that the parking enforcement officers were not acting under color of state law when
they reported the parking incident. Consequently, Schaffers Section 1983 claims
against the parking officers fail, and with them, her claims against the City.
A. Color of State Law
Whether a defendant acted under color of state law is a mixed question of fact
and law. How v. City of Baxter Springs, 217 F. Appx 787, 791 (10th Cir. 2007)
(unpublished) (citing Duke v. Smith, 13 F.3d 388, 392 (11th Cir. 1994)). Where, as
here, the underlying facts are undisputed, the standard of review is de novo. Van
Scoten v. C.I.R., 439 F.3d 1243, 1252 (10th Cir. 2006). Schaffers two theories as to
why the parking enforcement officers acted under color of state law are discussed in
turn below.
1. Badge of authority
Schaffer first contends that the parking officers acted under color of state law
because the incident occurred while they were performing their duties as City employees.
Section 1983 was enacted to deter state actors from using the badge of their authority to
deprive individuals of their federally guaranteed rights and to provide relief to victims if
such deterrence fails.2 Haines v. Fisher, 82 F.3d 1503, 1508 (10th Cir. 1996) (quoting

In most situations, including where, as here, a Section 1983 action is brought

against a state official to vindicate violations of the Fourth and Fourteenth
Amendments, the statutory requirement of action under color of state law and the
state action requirement of the Fourteenth Amendment are identical. See Lugar v.
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Wyatt v. Cole, 504 U.S. 158, 161 (1992)). The traditional definition of acting under
color of state law requires that the defendant in a 1983 action exercised power
possessed by virtue of state law and made possible only because the wrongdoer is clothed
with the authority of state law. Id. (quoting West v. Atkins, 487 U.S. 42, 49 (1988)
(internal punctuation omitted).) However, the fact that a tort was committed by an
individual employed by the state does not, ipso facto, warrant attributing all of the
employees actions to the state. Jojola v. Chavez, 55 F.3d 488, 493 (10th Cir. 1995)
(internal quotation marks omitted). Rather, before conduct may be fairly attributed to
the state because it constitutes action under color of state law, there must be a real
nexus between the employees use or misuse of their authority as a public employee, and
the violation allegedly committed by the defendant. Id. (quoting D.T. ex. rel. M.T., 894
F.2d at 1188).
Schaffer is unable to establish the requisite nexus between the parking
enforcement officers alleged unconstitutional conductnamely, lying in witness
statements and at the probable cause hearingand their authority to write parking tickets
and impound vehicles. After all, any citizen can report suspicious activity to the police
and repeat that testimony in court; in doing so, the parking enforcement officers exercised
no power possessed by virtue of state law and made possible only because [the parking

Edmondson Oil Co., 457 U.S. 922, 929 (1982); How, 217 F. Appx at 791
(unpublished); Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th
Cir. 1995).
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officers were] clothed with the authority of state law.3 Id. at 492-93 (quoting West, 487
U.S. at 49).
The fact that the parking enforcement officers were on duty when they gave their
witness statements does not alone render those statements under color of state law. See
Haines, 82 F.2d at 1508 (finding that on-duty cops who staged a prank robbery did
not act under color of state law because they were not using their badges of
authority, i.e., their positions as policemen . . . to accomplish the . . . prank).
Neither does the fact that the incident arose from the parking officers previous
exercise of state authority to issue parking tickets satisfy the color of state law
requirement. See Hall v. Witteman, 584 F.3d 859, 866 (10th Cir. 2009) (Even when
state employees are performing the services for which the state pays them, they may
not be state actors while performing functions that the state has no right to control.);
How, 217 F. Appx at 794 (unpublished) ([T]he proper inquiry is . . . at the time of
the alleged constitutional violation. . . .).4 The record is devoid of any indication that

That Cameron was speaking directly to police dispatch at the time of the
incident does not change that conclusion. Cameron had called dispatch to deal with
an unrelated matter, and the call happened to continue recording as Schaffer drove by
and Cameron spontaneously reported the incident with Schaffer. Schaffer puts forth
no evidence showing Cameron would not otherwise have chosen to report the
incident.
4
The record does not show that the parking enforcement officers were either
trained or required to (1) diffuse disputes that arose during the course of their duties
or (2) report any resulting disruptive behavior to the police. Schaffer has advanced
no such argument before either this or the district court. Accordingly, we do not pass
on the issue. See United States v. Cervini, 379 F.3d 987, 994 n.5 (10th Cir. 2004)
(Arguments not raised by the parties in their briefs are deemed waived.); Walker v.
Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992) (stating the general rule
that issues not raised to the district court will not be considered on appeal).
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their exercise of that authority extended to their witness statements and testimony.
See Jojola, 55 F.3d at 490, 494 (finding that a school janitor who sexually assaulted a
student did not act under color of state law because the complaint [was] devoid of any
allegation that [the janitor] enticed [the student] into the classroom through the use or
misuse of any state authority he may have possessed); How, 217 Fed. Appx at 793
and n.5 (unpublished) (finding a city clerk did not wear a badge of state authority
when she filed a criminal complaint against the plaintiff because [t]here is no
evidence in this case that [she] used her position as city clerk to gain an advantage in
the filing of her complaint). Consequently, the parking officers, although employed
by the City, acted in their private capacities when reporting and testifying against
Schaffer.
2. Joint action
Schaffer next contends that the parking officers engaged in joint action with
the police to arrest and prosecute her. Even a private party acts under color of state
law if that party is a willful participant in joint action with the State or its agents.
Gallagher, 49 F.3d at 1453 (quoting Dennis v. Sparks, 449 U.S. 24, 27 (1980)). To
apply the joint action test, courts examine whether state officials and private parties
have acted in concert in effecting a particular deprivation of constitutional rights. Id.
There are at least two ways to establish concerted action. Id. at 1454; see also Yanaki v.
Iomed, Inc., 415 F.3d 1204, 1212 (10th Cir. 2005) (Holloway, J., dissenting). Under
the conspiracy approach, the public and private actors [must] share a common,
unconstitutional goal. Gallagher, 49 F.3d at 1454 (internal quotation marks omitted).
9

Alternatively, concerted action may be found where there is a substantial degree of

cooperative action between state and private officials or if there is overt and
significant state participation in the deprivation of a plaintiffs constitutional rights.
Id. (internal quotation marks omitted).
Applying those approaches, we have consistently held that furnishing
information to law enforcement officers, without more, does not constitute joint
action under color of state law. See, e.g., Benavidez v. Gunnell, 722 F.2d 615, 616,
618 (10th Cir. 1983) (finding no joint action between foster parents who reported
their foster childrens kidnapping to the police, and the officers who subsequently
searched and arrested the alleged kidnappers, because [t]he mere furnishing of
information to police officers does not constitute joint action under color of state
law). Rather, joint action arises only when an officers decision to initiate an arrest
or a prosecution was not independent of a private partys influence. Gallagher, 49
F.3d at 1454 (citing Carey v. Contl Airlines, Inc., 823 F.2d 1402, 1404 (10th Cir.
1987) (finding that an airport managers complaint that a pilot on strike was
trespassing did not constitute joint action with the police, absent evidence that the
responding officers decision to arrest the pilot after he refused to leave the airport
was the result of a conspiracy, prearranged plan, customary procedure, or policy that
substituted the judgment of a private party for that of the police or allowed a private
party to exercise state power) and Lee v. Town of Estes Park, Colo., 820 F.2d 1112,
1115 (10th Cir. 1987) (holding that a property owner who mistook flood victims for
looters, made a citizens arrest, and then asked the police to charge them with
10

trespassing did not engage in joint action with the police, who ultimately booked the
plaintiff for a lesser offense, because [the officer] made the decision as to whether
[the plaintiff] should be charged with any offense, and [t]here is no suggestion in
the record . . . that [the officer and plaintiff] were somehow acting as a team)).
Schaffer failed to adduce evidence that the parking officers had any
involvement in her arrest and prosecution beyond furnishing information to law
enforcement officers. See Benavidez, 722 F.2d at 618. There is no indication that
the parking officers shared an unconstitutional goal with Officer Stumm or the
prosecutor, or that they exerted any influence over the decisions to arrest and charge
Schaffer. See Gallagher, 49 F.3d at 1454. Rather, the record shows that Stumm made
the decision to arrest and book Schaffer only after conducting an independent
investigation: to wit, subsequent to obtaining the witness statements and crime lab
photographs, he located the offending truck at Schaffers home address and observed
handprints and marks on the truck consistent with the statements and photographs.
Consequently, the parking officers did not engage in joint action with the police
when they reported their encounter with Schaffer and testified against her. 5 See
Carey, 823 F.2d at 1404; Lee, 820 F.2d at 1115.

Contrary to Schaffers contention, Lusby v. T.G. & Y. Stores does not

require otherwise. See 749 F.2d 1423, 1427-30 (10th Cir. 1984) judgment vacated on
other grounds sub nom. City of Lawton v. Lusby, 474 U.S. 805 (1985)). Lusby is
distinguishable because it involved (1) a private security guard who did not witness
the alleged theft, yet purported to arrest the plaintiff anyway; (2) responding officers
who failed to conduct any inquiry into probable cause before hauling the plaintiff to
jail; and (3) an established police policy of cooperating with local merchant
employees regarding shoplifting allegations (including by providing them special
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Because Schaffer fails to show that the parking officers acted under color of
state law as is required for liability under 42 U.S.C. 1983, summary judgment in favor
of the parking officers was proper.
B. Municipal Liability
A municipality may not be held liable where there was no underlying
constitutional violation by any of its officers. Hinton v. City of Elwood, 997 F.2d 774,
782 (10th Cir. 1993). Schaffer asserts underlying violations of the Fourth and Fourteenth
Amendments, which require state action. See Gallagher, 49 F.3d at 1446. In this case,
the concepts of state action and under the color of state law are coterminous. How, 217
F. Appx at 791 (unpublished); see supra fn. 2. As such, this Courts finding that the
parking officers did not act under color of state law necessarily vitiates Schaffers claim
against the City.
III.

CONCLUSION

For the foregoing reasons, we AFFIRM the district courts grant of summary
judgment in favor of the defendants.

citizens arrest paperwork that allowed summons to be issued on-site), all of which
allowed the private security guard to substitute his judgment for that of the police.
Id.
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